R (on the application of Open Space Society) v Secretary of State for Environment, Food and Rural Affairs

Common land – Restricted works – Consent – Section 38 of Commons Act 2006 – Defendant secretary of state granting consent to developer for construction of short access road across common land to housing development – Claimant applying for judicial review – Whether sufficient reasons on facts to permit departure by inspector from terms of defendant’s common land consents policy – Application dismissed The defendant secretary of state granted to the first interested party developer consent under section 38 of the Commons Act 2006 for the construction of a short length of road on common land at Barking Tye, Suffolk. The common was constituted by a relatively narrow verge of land on both sides of the B1078 Barking Road at that point. The proposed road was to create access from the B1078 to the site of a new housing development and would be some 70m2 in size. The second interested party was the freehold owner of the common and had given consent to the proposed access road. The third interested party was the apparent vestee of the right and obligation to regulate the common under the Commons Act 1899. The defendant appointed planning inspectors to determine applications for consent for works on registered common land under section 38(1) and for deregistration of registered common land under section 16(1) of the 2006 Act. The claimant was founded to protect open spaces and public rights of way. It applied for judicial review of the decision to grant consent, contending that the first interested party had failed to discharge the burden of proving a need for the proposed access road to be constructed on the common. It had failed to show, first, that there was no satisfactory alternative route off the common; and secondly, that there was no suitable replacement land which could reasonably have been provided. None of the interested parties took part in the proceedings. Held: The application was dismissed. (1) The defendant’s policy in relation to common land was contained in the Common Land Consents Policy (published in November 2015). The policy explained in the introduction that planning inspectors should seek to adhere to the policy in determining applications under sections 16(1) and 38(1) of the 2006 Act. However, every application had to be considered on its merits, and a determination might depart from the policy if it appeared appropriate to do so. In such cases, the inspectorate would explain why it had decided not to follow the policy. Under the policy, applicants for consents had to adduce evidence of the alternatives they had considered and, if they had rejected them, they should generally offer a proper explanation as to why they had done so. The intensity of how alternatives were explored would depend on the circumstances. In some cases, however, an inspector might depart from the policy and decide that an applicant need not consider alternatives or explain why specific alternatives had been rejected. Consistently with principle, if inspectors took that course, they should set out why they had departed from the requirement for applicants for consent under the 2006 Act to do so. (2) An applicant might need to consider a section 16(1) application as an alternative in the circumstances of a particular section 38(1) application and explain why it was impossible or undesirable. Paragraph 5.10 recognised the alternative of the deregistration of common land, and the substitution of replacement land elsewhere, in the context of a section 38 application for works relating to vehicular ways, albeit that paragraph 5.10 was directed at situations where a section 16(1) application might be undesirable. Accordingly, an applicant for consent under section 38 of the 2006, whether or not it chose to make a concurrent application under section 16, had to properly explore potential alternatives and that might include a replacement alternative. The rejection of potential alternatives had to be properly explained. (3) Paragraph 5.7 of the policy, reiterated that commons should be maintained or improved as a result of the works being proposed on them. A wider public benefit of itself did not justify granting consent for such works. On its face the paragraph did not permit a wider public benefit to be weighed against permanent (lasting) works to diminish their adverse impacts. Works having a permanent impact had to confer a wider public benefit and that impact must not be significant. Depending on the circumstance, works might have a significant impact. If a replacement alternative was available, that could retain a wider public benefit such as a housing development but without having any net adverse effect on a common. The alternative was plainly to be preferred to a proposal under which the impact of the proposed works was both lasting and had some (albeit perhaps small) residual adverse effect. The upshot was that permanent works on a common which required section 38 consent were to be avoided if possible unless their effect was to maintain or improve the condition of the common. It was difficult to conceive of how a paved vehicular way across a common to serve an adjoining development (or otherwise) would maintain or improve the common. That underlay the need for applicants to explore and explain suitable alternatives. The policy required an applicant to consider alternatives to any application it proposed. It was for the applicant to produce evidence sufficient to persuade an inspector that alternatives had been properly considered and rejected. With a section 38(1) application, those alternatives might include the claimant’s off common and replacement alternatives. (4) In determining a section 38 application, the inspector had to consider the four factors set out in section 39(1)(a)-(c) of the 2006 Act. In doing so, the inspector concluded that: the proposal would not adversely affect the interests of those occupying or having rights in relation to the common (section 39(1)(a)); it would not have any significant adverse effect on the interests of the neighbourhood (section 39(1)(b)); and it would not cause significant harm to the public interest in conservation, landscape and public access (section 39(1)(c)). In light of all those findings, it was open to the inspector to depart from the policy in the special circumstances of this case, which meant that the interested party did not need to explore the alternatives as would ordinarily be required. The inspector concluded that there was no good reason for withholding section 38(1) consent and that decision would stand. George Laurence KC and Simon Adamyk (instructed by Richard Buxton Solicitors) appeared for the claimant; Ned Westaway (instructed by the Government Legal Department) appeared for the defendant. Eileen O’Grady, barrister Click here to read a transcript of R (on the application of Open Space Society) v Secretary of State for Environment, Food and Rural Affairs